Employers Beware: Health-Related Absences of Less Than Three Days May Be FMLA-Protected

An employer should not presume that an absence from work of less than three consecutive days for a health-related reason is not protected by the FMLA, and it should carefully scrutinize an employee’s absence from work for health-related reasons before disciplining or discharging the employee for excessive absenteeism or tardiness. In Fries v. TRI Mktg. Corp., D. Minn., No. 11-01052, 4/23/12, a court ruled that the cumulative effect of multiple health conditions that afflicted an employee and caused a single-day absence for which her employment was terminated can be considered by a jury to determine whether she had a “serious health condition” that entitled her to FMLA leave even though each condition alone may not qualify as a “serious health condition” under the FMLA. The employee had genital herpes and a bladder issue. She was initially suspended and later terminated from employment about two days after she returned from a one-day absence.

The employer argued that the case could be thrown out before trial because the employee did not have a “serious health condition” entitling her to leave protected by the FMLA. The federal court denied the motion.

The court observed that the employee had to show first that she was entitled to FMLA benefits because she had a “serious health condition involving continuing treatment by a health care provider.” The employee produced evidence that on Friday, July 9, 2010, she did not report to work because of alleged pain and frequent urination; on Saturday, July 10, 2010, she began to have difficulty urinating and could not urinate at all by the evening. On Sunday, July 11, 2012, she went to a hospital emergency room (ER), where a doctor attributed her urinary retention issue more to herpes than to the bladder issue, installed a catheter in her, prescribed medications, and instructed her to take off from work on Monday, July 12, 2010. The employee was absent from work for these reasons on Monday, July 12, 2010, and returned to work July 13, 2010.

The employer argued she did not have a “serious health condition” because she was not incapacitated for more than three days. It disputed whether she was incapacitated on the two days before she went to the ER because of urinary retention. The employer also contended that the employee’s bladder issue caused her urination issues Friday and Saturday and that herpes caused her inability to urinate Sunday and her Monday absence. Therefore, the employer maintained, the condition that caused the employee’s absence from work — herpes — did not incapacitate her for the three-day period.

The court acknowledged that each of the medical conditions affecting the employee alone may not have incapacitated her for three or more consecutive days, as required by the FMLA implementing regulations. The court relied on other court decisions finding that medical conditions affecting an employee should be considered together when determining if the employee is experiencing a “serious health condition.” Other courts have noted that the focus should be on the cumulative, adverse effects of the related medical conditions afflicting the employee at the time she seeks leave from work.

An employer should not presume that any absence from work of less than three consecutive days for a health-related reason is not FMLA-protected, and it should carefully scrutinize circumstances pertaining to an employee’s absence from work for health-related reasons before disciplining or discharging the employee. If an employee is absent from work even for three days or less because the employee is concurrently afflicted by multiple health conditions, the employer should assess whether the conditions are “temporally linked” and affect “the same organ system,” such that these in combination are indicative of a “serious health condition.” FMLA leave should be granted to an affected employee if the employee made a timely FMLA request and if adequate certification of the need for FMLA leave has been obtained from a health care provider or if the employer has actual or constructive knowledge of the employee’s need for FMLA leave.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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